1. Definitions

1. “Kinnwell IP” means the Platform, the Documentation, and all intellectual property provided to Customer or Authorized Users. For clarity, Kinnwell IP includes Business Contact Data and any information, data, or other content derived from Kinnwell’s provision of the Platform, but does not include Customer Data.
2. “Authorized User” means Customer’s employees, consultants, contractors, agents, or other business users who are authorized by Customer to access and use the Platform and for whom access has been purchased.
3. “Business Contact Data” means Personal Information relating to Kinnwell’s relationship with Customer (e.g., Authorized Users’ names and contact info) and data Kinnwell collects to manage the relationship, verify identity, or comply with law.
4. “Community” means any senior-living facility housing Residents identified in an Order or otherwise agreed in writing.
5. “Documentation” means Kinnwell’s end-user documentation and published Platform pricing as made available on Kinnwell’s website from time to time.
6. “Harmful Code” means any code or device (e.g., virus, malware) designed to permit unauthorized access or to disrupt or harm systems or data.
7. “Customer Data” means documents, information, data, and other content submitted or transmitted by or for Customer or an Authorized User through the Platform (including Resident Data).
8. “Order” means an ordering document (or results of Kinnwell’s online ordering flow) that incorporates this Agreement by reference.
9. “Personal Information” means information that identifies or can reasonably identify an individual, including data defined as personal data/PII under applicable laws.
10. “Platform” means Kinnwell’s proprietary, hosted software platform for managing senior-living Communities.
11. “Resident” means an individual living in a Community for whom Customer uses the Platform to manage care.
12. “Resident Data” means all information and records (which may include Personal Information) about Residents.
13. “Subscription Period” means the period identified in the Order during which Authorized Users may access the Platform.
14. “Third-Party Products” means third-party products provided with, integrated with, or incorporated into the Platform.
15. “Merchant” means Customer (used where payments functionality is in scope).

2. Access and Use

1. Provision of Access. Subject to this Agreement, Kinnwell grants Customer a non-exclusive, non-transferable, non-sublicenseable right for Authorized Users to access and use the Platform during the Subscription Period solely for Customer’s internal business purposes and as specified in the Order. Unique accounts are required; credential sharing is prohibited. Customer is responsible for all activities under its Authorized Users’ accounts.
2. Documentation License. Kinnwell grants Customer a non-exclusive, non-transferable, non-sublicenseable license to use the Documentation during the Subscription Period solely for internal business purposes in connection with the Platform.
3. Use Restrictions. Customer shall not (and shall not permit any Authorized User to): (i) copy, modify, or create derivative works of Kinnwell IP; (ii) provide, publish, or distribute the Platform/Documentation to third parties; (iii) reverse engineer or attempt to access source code; (iv) remove proprietary notices; (v) use Kinnwell IP unlawfully or to infringe others’ rights; (vi) use Kinnwell IP for competitive analysis or to build a competing product; (vii) bypass security or access the Platform without valid credentials; (viii) submit unlawful, infringing, or harmful content (including Harmful Code); or (ix) use Kinnwell IP for activities where failure could cause death, personal injury, or environmental damage.
4. Reservation of Rights. Kinnwell reserves all rights not expressly granted.
5. Suspension. Kinnwell may temporarily suspend access (a “Service Suspension”) for security, legal, operational, or third-party dependency reasons as described in the Agreement. Kinnwell will use commercially reasonable efforts to provide notice and resume access. Kinnwell is not liable for losses arising from a Service Suspension.
6. Business Contact Data. Kinnwell may process Business Contact Data to manage the relationship, conduct core operations (e.g., accounting/audit/tax), detect and prevent fraud or misuse, verify identity, and comply with applicable laws.

3. Customer Responsibilities

1. General. Customer is responsible for all access/use resulting from access it provides (directly or indirectly) and for its Authorized Users’ acts/omissions. Customer will comply with law when providing Resident Data and secure all necessary consents/authorizations.
2. Billing Supplemental Terms (if applicable). If Customer uses Kinnwell’s Billing & Payments module, Customer authorizes Kinnwell and/or its PCI-compliant payment processor (Stripe, Inc.) to collect Resident fees on Customer’s behalf. Kinnwell provides billing via Stripe and does not guarantee collection or assume liability for non-payment. If Kinnwell/Stripe advances fees that cannot be collected, Customer is solely responsible for any shortfall. Failure to comply may constitute a material breach permitting termination after five (5) days’ notice if uncured. Process: Kinnwell will provide at least 30 days’ written notice specifying the adjustment and effective date; adjustments apply only going forward and will be commercially reasonable to address the demonstrated cost impact. Re-evaluated quarterly; if mix stays below all thresholds for two consecutive months, Kinnwell will consider reducing the adjustment. Interchange/assessments and Stripe pass-through fees may be passed through at cost; Kinnwell’s markup is in addition. At Customer’s option, Customer may (a) disable certain card types (e.g., AmEx) or (b) set a maximum card transaction amount (e.g., $1,000) with 15 days’ written notice; resulting fee changes apply prospectively. See the Stripe Services Agreement.
3. Customer Data; License. Customer will not upload data it lacks rights to upload. Customer grants Kinnwell a limited, non-exclusive, royalty-free, worldwide license to use, reproduce, display, perform, and process Customer Data solely to provide the Platform during the Subscription Period.
4. Third-Party Products. Third-Party Products are subject to their own terms. Kinnwell makes no warranties for Third-Party Products. Customer represents it has authority to enable integrations and data flows into the Platform.
5. Customer Control and Responsibility. Customer remains solely responsible for: (i) Customer Data (content/use); (ii) instructions/materials provided by or for Customer; (iii) Customer’s IT systems; (iv) credential security; and (v) all access/use by or through Customer’s systems or credentials.
6. Transition of Community Management. If a Community’s management transitions to a different operating company, Customer will promptly notify support@kinnwell.com. That Community will be excluded from Customer’s next month’s billing cycle and any minimum resident count will be adjusted accordingly. For the remainder of the applicable term in the Order for that Community, invoices for such Community will be issued to the new operating company.

4. Support (SLA)

Kinnwell will use commercially reasonable efforts to provide monthly uptime of 99.5%. If uptime falls below 99.5% in a month, Customer is entitled to a service credit of 3% of the monthly fee per day below target, capped at 15% of the monthly fee. Credits must be requested within 30 days of the downtime and apply to future invoices. Credits are Customer’s sole and exclusive remedy for uptime shortfalls.

5. Fees and Taxes

1. Fees. Customer will pay the Fees identified in the Order/Documentation. Fees are non-refundable. Payments are in USD by ACH, check, or card. ACH payers will complete Kinnwell’s authorization form. If paying by card, Customer agrees to the applicable processor’s terms (e.g., Stripe).
2. Taxes. Fees are exclusive of taxes. Customer is responsible for sales/use/excise/VAT-like taxes and similar charges (excluding Kinnwell’s income taxes).

6. Confidential Information

1. Definition. “Confidential Information” is information marked or reasonably considered confidential, excluding information that is public, already known without restriction, lawfully disclosed by a third party, or independently developed without use of the discloser’s information. Personal Information is Confidential Information.
2. Duty. The recipient will limit disclosures to Representatives with a need to know under comparable confidentiality obligations and is responsible for their compliance. Required legal disclosures are permitted with prompt notice and cooperation. The existence/terms of this Agreement may be shared with investors/lenders/acquirers under customary confidentiality.
3. Return/Destruction; Survival. Upon termination/expiration, the recipient will return or destroy Confidential Information and certify destruction upon request. Non-use/non-disclosure survives three (3) years (trade secrets persist as protected by law).

7. Data Security & Processing of Personal Information

1. Security Measures. Kinnwell implements commercially reasonable administrative, physical, and technical safeguards to protect Customer Data (including Personal Information in Resident Data and Business Contact Data).
2. Processing of Personal Information. Business Contact Data is processed per this Agreement and Kinnwell’s Privacy Policy. Where Customer provides Personal Information within Customer Data, Kinnwell acts as a processor/service provider and Customer acts as a controller, as defined by law.

8. Intellectual Property Ownership; Feedback

1. Kinnwell IP. Kinnwell owns all rights in Kinnwell IP. Third-Party Product providers own their products.
2. Customer Data. As between the Parties, Customer owns Customer Data.
3. Feedback. Kinnwell may freely use feedback/suggestions regarding the Platform.

9. Warranty Disclaimer

THE PLATFORM IS PROVIDED “AS IS.” KINNWELL AND ITS SUPPLIERS/LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE. KINNWELL DOES NOT WARRANT THE PLATFORM WILL MEET REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE, BE COMPATIBLE WITH ANY SYSTEMS, OR BE SECURE OR FREE OF HARMFUL CODE. KINNWELL IS NOT LIABLE FOR DECISIONS BASED ON PLATFORM INFORMATION/DATA OR FOR COLLECTION OF RESIDENT FEES.

10. Indemnification

1. Kinnwell Indemnification. Kinnwell will defend/indemnify Customer against third-party claims that the Platform (as permittedly used) infringes US IP rights, and pay resulting damages and reasonable attorneys’ fees. Kinnwell may (i) modify/replace, (ii) procure rights, or (iii) terminate the affected service and refund prepaid, unused fees. Exclusions apply for combinations not provided/authorized by Kinnwell, non-Kinnwell modifications, Customer Data, and Third-Party Products.
2. Customer Indemnification. Customer will defend/indemnify Kinnwell and its personnel against claims arising from Customer Data, Customer/Authorized User negligence or willful misconduct, unauthorized use, use with unauthorized systems, and Kinnwell’s inability to collect Resident Fees due to Customer actions/omissions. Customer will not settle involving Kinnwell without Kinnwell’s written consent; Kinnwell may participate with its own counsel.
3. Sole Remedy. Section 10.1 states Customer’s sole remedy and Kinnwell’s entire liability for third-party IP claims regarding the Platform.

11. Limitations of Liability

IN NO EVENT WILL KINNWELL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES; LOST PROFITS/REVENUE/BUSINESS/GOODWILL; DATA LOSS/INTERRUPTION/SECURITY BREACH; OR COST OF SUBSTITUTE GOODS/SERVICES—EVEN IF ADVISED OF THE POSSIBILITY. KINNWELL’S AGGREGATE LIABILITY WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. Subscription Period and Termination

1. Subscription Period (Minimum 12 Months). The initial term begins on the Effective Date and continues for the Initial Subscription Period stated in the Order, which will be no less than twelve (12) months. An Order may specify a longer term (e.g., sixty (60) months) for one or more Communities or modules; the Order controls.
2. Renewal. Unless otherwise stated on the Order, the Agreement renews for successive twelve (12)-month periods unless either Party gives at least thirty (30) days’ prior written notice of non-renewal before the end of the then-current Subscription Period.
3. Termination. Additional termination rights apply for payment default after notice, uncured material breach, or insolvency events, as detailed in the Agreement.
4. Effect of Termination. Upon termination/expiration, Customer will cease use and delete/return Kinnwell IP and certify destruction on request. Customer should export desired Customer Data before termination/expiration. Fees accrued remain due; no refunds are provided unless expressly stated.
5. Survival. Sections relating to confidentiality, IP, warranty disclaimer, indemnification, liability limits, termination effects, and miscellaneous terms survive.

13. Miscellaneous

1. Entire Agreement; Order of Precedence. This Agreement and incorporated documents form the entire agreement. In case of conflict: (i) this Agreement; then (ii) incorporated documents.
2. Notices. Notices must be in writing and sent to the addresses/emails set forth in the Order (or as updated), by personal delivery, courier, email (with confirmation), or certified/registered mail. Effective upon receipt.
3. Force Majeure. Neither Party is liable for delays/failures (other than payment) due to causes beyond reasonable control.
4. Waiver. No waiver unless in writing; no delay/failure operates as a waiver.
5. Severability. Unenforceable terms are replaced with valid terms closest to original intent; remainder remains in effect.
6. Governing Law. California law governs, conflict principles excluded.
7. Dispute Resolution; Venue. Unresolved disputes after 60 days’ notice will be settled by binding JAMS arbitration in Los Angeles County, California, in English, before one arbitrator. Parties consent to exclusive jurisdiction/venue in Los Angeles County courts for equitable relief, judgment on award, and enforcement.
8. Assignment. Customer may not assign/delegate without Kinnwell’s written consent; unauthorized assignments are void. Agreement binds permitted successors/assigns.
9. Export. Customer will comply with US export/sanctions laws and not export/re-export the Platform in violation thereof.
10. US Government Rights. The Platform and Documentation are “commercial items”; government rights are limited as per FAR/DFARS.
11. Equitable Relief. Breach/threatened breach of confidentiality or use restrictions may cause irreparable harm; equitable relief is available without posting bond.
12. Publicity. Kinnwell may identify Customer as a user and may use Customer’s name/logo and trademarks in Customer lists, case studies, press releases, ads, and websites; goodwill inures to Customer. Upon Kinnwell’s request, Customer will consider participating in a case study.